Act can’t resolve ‘hakuna matata’ copyright row

A commentary by Tom Kabau, titled “Resolving trade marking of hakuna matata slogan”, published in Business Daily is misleading on the issue of management of traditional knowledge and cultural expressions.

The article gives the impression that the role of administering and protection of Traditional Knowledge and Traditional Cultural Expression (TK&TCE) is vested on Kenya Copyright Board (KECOBO).

The public needs to understand the genesis of The Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016 and its metamorphosis and implementation so far.

The Act was assented to by the President on August 31,2016.

This law aims at creating an appropriate sui-generis mechanism for the protection of traditional knowledge (TK) and traditional cultural expressions (TCEs) which gives effect to Articles 11, 40 and 69(1) (c) of the Constitution. The application of the Act commenced on September 21, 2016.

Immediately it was passed, the Act appeared disproportionately protectionist with little or no provisions on support, access, development and promotion of TK and TCEs. It was also viewed by many as “an orphan Act” as it lacked an appropriate implementation and enforcement framework and had no clear parent ministry.

The definition of “Cabinet Secretary” was particularly ambiguously defined as the “Cabinet Secretary responsible for matters relating to intellectual property rights”.

This definition may have been interpreted to cover different Ministries namely the Office of the Attorney General, Ministry of Industrialization, Ministry of Sports, Ministry of Arts and Culture or Ministry of Agriculture. Out of these potential ministries, the Office of the Attorney General might seem to be the most likely ministry in charge of the Act. This is so because KECOBO is the state organ under the Office of the Attorney General, designated under the Act as host institution for the traditional knowledge digital repository as well as an arbiter for settlement of concurrent claims to TK by different communities.

To remedy this short coming, the Statute Law (Miscellaneous Amendments) Bill, 2018 made various, wide-ranging amendments to the existing intellectual property (IP) law related statutes, including the TK and TCE Act. Section 2 of the TK and TCE Act through the miscellaneous Amendment now states that ‘the Cabinet Secretary for the time being responsible for matters relating to culture’ shall oversee the implementation and enforcement of the TK and TCE Act.

This means that the proposed parent ministry for the TK and TCE Act is the Ministry of Sports and Heritage formerly known as the Ministry of Sports, Culture and the Arts and before that, the Ministry of Gender, Sports, Culture and Social Services.

The Cabinet Secretary will have all executive powers to operationalise the Act and to consider how best to administer and enforce the TK and TCE Act as this is not the mandate of KECOBO.

Having clarified the host and executor of the Protection of Traditional Knowledge and Cultural Expressions Act, it is fair to note that the Act does not have the solution to the current problem as alleged.

Paul Kaindo, IP expert, advocate of the High Court of Kenya and a legal counsel for Kenya Copyright Board.